The Branch Davidian
Trial and Appeals
by Carol Moore
April 1997


Eleven Branch Davidians faced trial in January and February of 1994, charged with conspiracy to murder federal agents, murder of federal agents, and various weapons charges. All eleven were found innocent of conspiracy to murder and murder. However, five were convicted of aiding and abetting voluntary manslaughter and three of weapons charges. (One Davidian cooperated with federal authorities, pled guilty to impeding federal agents and received a three year sentence.)

However, even these convictions were gained only because of prosecutorial and judicial misconduct. As revealed during the 1995 House Waco hearings, the Department of Justice stopped interviews with BATF agents that might have revealed evidence that could have acquitted the Davidians. The two federal prosecutors, Ray Jahn and William Johnston, themselves were involved in the deadly raids and wanted to score convictions at any price. They condoned destruction of physical evidence, federal agents lying on the stand, withheld evidence of a Davidian's innocence which forced him to spend a year in jail before being acquitted, withheld some evidence against defendants until the last moment to frustrate defense efforts, withheld evidence that might discredit their own witnesses, and unduly influenced and coached witnesses.

U.S. District Judge Walter J. Smith, who presided over the trial, was under investigation during the trial by the Justice Department for five months for allegedly lying under oath during a civil suit trial. The Justice Department dismissed these potentially career-ruining charges in the middle of the trial.

Declaring he would "not allow the government to be put on trial," Judge Smith forbade defense attorneys from mentioning self-defense, or asking questions, presenting evidence or calling witnesses who could prove self-defense. This was despite the fact the Davidians' primary defense against all charges was that under statutory and common law Bureau of Alcohol, Tobacco and Firearms agents' excessive force on February 28, 1993 -- an armed attack by 76 agents armed with submachine guns, shooting from helicopters, and throwing flash-bang grenades -- gave the Davidians the right to use armed force in self-defense. Smith only allowed mention of self-defense in closing arguments.

Despite this judicial and prosecutorial misconduct, jurors found Davidians innocent of conspiracy to murder, and murder of, federal agents because of evidence that BATF's February 28th attack was brutal and unprovoked. Jurors were convinced Davidians acted in self-defense. Jurors also did not believe that the Davidians were responsible for the April 19, 1993 fire.

Smith did not instruct the jury that defendants also could be found innocent of the charge of aiding and abetting voluntary manslaughter by reason of self-defense. Jurors later admitted they probably would have done so if they had been properly instructed. They found five Davidians -- Renos Avraam, Brad Branch, Jaime Castillo, Livingstone Fagan, and Kevin Whitecliff -- guilty. Smith sentenced each to full 10 year sentences.

In his instructions to the jury, Judge Smith explicitly tied Count Three, using or carrying a firearm during and in relation to the commission of a crime of violence, only to Count One, conspiring to murder federal agents. However, the jury relied on the verdict form which did not specify this connection. Confused jurors therefore found seven Davidians -- Avraam, Branch, Castillo, Fagan, Whitecliff and Graeme Craddock and Ruth Riddle -- guilty of this charge. Smith originally set aside the Count Three weapons verdicts but then honored prosecutors' requests to reinstated them -- this despite the fact that Title 18 924(c)(1) of the U.S. Code clearly specifies that the defendant must be "convicted" of the first crime (i.e., conspiracy to murder in Davidians' case) before they can be convicted of using a firearm in relation to the crime.

At sentencing Smith claimed that because the government alleged machineguns were found on the premises, the defendants carried them -- despite no such finding of guilt by the jury. He therefore sentenced Avraam, Branch, Castillo, Fagan, and Whitecliff to the maximum sentence of 30 years each. He sentenced Craddock to ten years and Riddle to five years. Kathryn Schroeder, who cooperated with prosecutors, received a three year sentence.

Despite questionable and insufficient evidence, jurors also found Graeme Craddock guilty of possession of an unregistered hand grenade and Paul Fatta of conspiring to illegally convert weapons and aiding and abetting conversion. Craddock received another 10 year sentence and Fatta a 15 year sentence.

After the verdicts were announced on June 17, 1994, jury forewoman Sarah Bain went on a number of radio talk shows to protest Judge Smith's actions in the case. Bain told one reporter, "The federal government was absolutely out of control there. We spoke in the jury room about the fact that the wrong people were on trial, that it should have been the ones that planned the raid and orchestrated it and insisted on carrying out this plan who should have been on trial."


Davidians Avraam, Branch, Craddock, Castillo, Fatta, and Whitecliff, immediately appealed the verdicts and sentences. (Ruth Riddle declined to appeal, fearing she might be given a longer sentence. Livingstone Fagan refused to appeal, as a sign of non-cooperation with a system he did not believe would bring him justice.)

The Davidian Arguments

The Fifth Circuit Court of Appeals heard Oral Arguments on January 4, 1997. Following are arguments used by the defendants in their appeals and some notes on the judges' and federal attorney's comments.

1. The Court Erred in Not Charging the Jury that Self-Defense is A Defense to Manslaughter

Judge Smith instructed the jury that it could find the Davidians innocent of conspiracy to murder and murder of federal agents if they found Davidians acted in self-defense. Jurors did find them innocent on those grounds, believing that the Bureau of Alcohol, Tobacco and Firearms February 28, 1993 attack constituted excessive force. Judge Smith did not instruct jurors that they could use this defense against the charge of aiding and abetting voluntary manslaughter. Some jurors hold they would have found them innocent, had the judge given them that option.

Defendants argue that since self-defense was allowed in the murder charges, it should have been allowed in the manslaughter charge because there was ample evidence of excessive force -- the judge's error should not weigh against the defendants. (U.S. v. Panter, Mathews v. U.S., U.S. v. Johnson, U.S. v. Span, U.S. v. Gometz, etc.)

(Government attorney Wyderko admitted he could give no reason or rationale for the judge's not allowing self-defense as a defense. Judges could dismiss for lack of evidence or direct there be a new trial.)

2. The Weapons Conviction Should be Set Aside because U.S.C. 924 Requires Conviction for the Predicate Offense

The confused jury found defendants guilty of carrying a weapon in commission of the violent crime of conspiracy to murder federal agents, after finding them innocent of conspiracy to murder. While Judge Smith's instructions to the jury specified that the two charges were connected, the jury verdict form, on which the jury relied, did not. Jurors said they would have voted the defendants innocent had they realized the weapons charge was tied only to the conspiracy charge.

Defendants argue that statute law specifies that only if the defendant is found guilty of the first offense, can the defendant be convicted of the second. U.S. v. Lucien recently held just that.

(Judges could dismiss for lack of evidence or for reasons argued by defense.)

3. The Court Erred in Sentencing Defendants to Thirty Years Under U.S.C. 924

The jury did not find any defendant except Craddock guilty of carrying or using an illegal weapon. The maximum sentence for carrying a legal weapon during the commission of a crime of violence is five years; for an illegal one, it is thirty years.

Defendants argue that U.S. v. Correa-Ventura, U.S. v. Simms, U.S. v. Martinez, U.S. v. Melvin and U.S. v. Rodriquez all hold that unless a jury finds that a defendant was in possession of an illegal weapon, for sentencing purposes it must be assumed he or she had only a legal firearm and that the maximum sentence is five years. The Fifth Circuit has agreed with this argument in the past.

In U.S. v. Bailey the Supreme Court ruled after written appeals were submitted that the alleged weapons must be easily reachable or in hand for the government to claim the defendant had the weapon. Defense attorneys said that this would also apply to the Davidians having alleged machineguns at hand -- no evidence was presented each individual did.

(Judges could reduce sentences to five years.)

4. The Court Took Away the Opportunity to Poll the Jury

Judge Smith initially set aside the inconsistent convictions for using a weapon during the commission of a crime of violence, thereby leading attorneys to believe that they did not need to poll the jury to see if all in fact agreed with that verdict. Several days later, the judge reinstated the guilty verdicts.

Defendants argue that this failure to poll the jury deprives defendants of a right guaranteed by F.R. Crim.P. 31(d) and that defendants deserve a new trial on the charge.

(Judges did not seem very sympathetic to this argument.)

5. Insufficient Evidence to Sustain Convictions

Depending upon the nature of the evidence submitted against each defendant, defendants will argue that there was insufficient evidence upon which a jury could find them guilty of aiding and abetting manslaughter or of any weapons charges -- or that the element of self-defense was so strong as to render the evidence irrelevant. This includes defendants Paul Fatta -- against whom there was no evidence presented that he had knowledge that two guns he had purchased allegedly had been converted to machine guns -- and Graeme Craddock, who admitted that he'd been given what he was told was a live grenade. However, the evidence that the grenade found six days later was the same grenade he was given was dubious.

The Fifth Circuit Court of Appeals Decision

On August 5, 1996 the Court affirmed the convictions of the six Davidians, despite the feeble evidence. They wrote that using "more than 70 well-armed agents" to arrest David Koresh was not excessive force and "A citizen may not initiate a fire-fight solely on the ground that police sent too many well-armed officers to arrest him. We reject this invitation for individuals to forcibly resist arrest and then put their arresters on trial for the reasonableness of their tactical decisions." Judge Higgenbotham (Reagan appointee supposedly good on the gun issue) rejected their claim that they were only defending themselves. Judge William Schwartzer (a San Francisco liberal) said the six convictions should be set aside, saying the force used was excessive.

The judges upheld the confused jury's finding that the Davidians used a weapon during the crime of conspiracy to kill federal agents -- even though they found them innocent of conspiracy. However, the Court did hold that four Davidians could have 25 years cut off their sentences because appeals judges found that the sentences for allegedly using an illegal weapon were invalid under the recent Supreme Court decision in the Bailey case. That case held that prosecutors have to prove that the individual knew he/she had an illegal weapon.

Unfortunately, the appeals judges sent this decision on sentencing back to the notoriously anti-Davidian Judge Smith. He will have to decide if there is evidence in the trial record that any Davidian had, and knew he had, illegal weapons on February 28, 1993 during the BATF attack on the Branch Davidians during which four federal agents and six Davidians died. If he cannot provide such evidence, he can sentence them to only 5 years in prison for carrying a weapon.

Davidian attorneys immediately filed an appeal with the Supreme Court because other circuit courts have found that only the jury can decide if defendants had illegal weapons while the Fifth Circuit has now ruled the judge can make that decision. When there is a conflict between different circuit court rulings, such cases usually go to the Supreme Court. In April, 1997 the Supreme Court ruled it would not hear the Davidians' case until Judge Smith had ruled because technically the Fifth Circuit had vacated the sentences on the guns. The press widely mis-reported this as the Supreme Court's turning down their cases for all time. However, this is not true, since Smith's eventual sentences as well as other aspects of the case may still be appealed, depending on Smith's sentencing ruling and on the Fifth Circuit's final decision on his ruling.

The judges also ruled that if another appeals court then-considering in the U.S. vs. Kirk case ruled that the federal government did not have the right under the commerce clause to regulate/ban automatic weapons, Paul Fatta could be released. (Of course, no evidence was presented at trial that Fatta knew that the two weapons he had bought allegedly were converted to automatics, but the judges did not let that lack of evidence sway their decision.) However, three Fifth Circuit judges upheld the ban; the whole Fifth Circuit then decided to hear the case -- but split 8 to 8 on whether to uphold it, leaving the three-judge ruling to stand. Kirk is appealing to the Supreme Court. Needless to say, citizens familiar with this whole process are disgusted by the injustices done the Davidian prisoners.

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